South Carolina Cases September 14, 2022: Finch v. S.C. Criminal Justice Acad.

Case Description

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ORDER

SHIRLEY C. ROBINSON Administrative Law Judge

STATEMENT OF CASE

This matter is before the Administrative Law Court (ALC or Court) pursuant to a Notice of Appeal filed by Richard Finch (Appellant). Appellant seeks review of a final agency decision issued by the Law Enforcement Training Council (the Council) of Respondent South Carolina Criminal Justice Academy (Academy) permanently denying Appellant's law enforcement certification. Upon consideration of the arguments raised in the parties' briefs, and a review of the record and the law, the Court reverses the final agency demands and remands the matter to the Council.

BACKGROUND

On September 11, 2020, the Academy received a Personal Change in Status Report (Notification of Separation Due to Misconduct) alleging Appellant had committed misconduct as defined by section 23-23-150. S.C. Code Ann. § 23-23-150 (Supp. 2021). Specifically, the notification alleged Appellant had engaged in misconduct by:

Willfully making false, misleading, incomplete, deceitful, or incorrect statements to a law enforcement officer, a law enforcement agency, or a representative of the agency, except when required by department policy or by the laws of this State;

Willfully providing false, misleading, incomplete, deceitful, or incorrect information on a document, record, report, or form, except when required by departmental policy or by the laws of this State.

On September 23, 2020, Appellant requested a contested case hearing. On November z0, 2020, a • s contested case hearing was held.

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The allegations arose out an incident that occurred on May 8, 2020. On May 8, 2020. Appellant, a seven-year veteran of the South Carolina Department of Public Safety, responded to an incident that had been reported as a motor vehicle collision with a deer. Upon arrival, firefighters informed Appellant that while there was damage to the vehicle including to a tire, there was no evidence of a collision with a deer. Firefighters also reported the driver was behaving oddly and had removed the vehicle's tag and hidden it in the woods; Appellant was able to retrieve it, however. The tag was clear.

Appellant attempted to talk with the person at the scene to discern what had occurred although there was no evidence this person was the driver. The individual had difficulty communicating in English but seemed to indicate the vehicle had collided with a deer, and that another individual had gone to get help. The individual at the scene did not have a valid driver's license but provided Appellant with a passport for identification. The passport was valid.

Appellant stated the vehicle had fresh damage near the front (the front bumper cover was missing), "the radiator was busted," and there was possible damage to the headlight. Appellant concluded the vehicle had been involved in a collision but was unable to determine what the vehicle had struck. There was no evidence of an accident on the roadway leading to the incident location, no debris field at the scene, and no other vehicles were observed.

Upon completion of his investigation, Appellant advised dispatch the status of the call had been switched from a collision to assisting a motorist. Recordings indicate Appellant advised dispatch "he's never struck anything. His hose broke off his radiator." Appellant testified he determined the elements required to classify the incident as a collision (both vehicles involved and property damage) were not present. Appellant testified because he believed help to be on the way, he did not classify the vehicle as disabled thereby not triggering the requirement for a collision report. Appellant did not charge the man at the scene for driving without a license because of Appellant's uncertainty as to whether he was the driver. While not relevant to this appeal, the following day, the vehicle was connected to a hit and run collision that had occurred in another county.

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On April 9, 2021, the hearing officer issued his findings and recommendations, in a thorough and well-reasoned decision. The hearing officer stated the evidence indicated Appellant made a factually false statement regarding whether the vehicle had been in a collision. Damage observable at the scene and subsequent investigation indicates at some point prior to Appellant encountering the vehicle, it had made contact with another vehicle. The hearing officer further found the evidence did not demonstrate Appellant's statement was made willfully or in an attempt to deceive or mislead other Department employees.

The hearing officer expounded. While Appellant was presented with a vehicle displaying a wide array of damage, Appellant had a difficult time identifying when or how the damage occurred. The hearing officer concluded that merely because Appellant was able to determine some of the damage to be newer than other damage or to be "fresh damage," would not necessarily indicate the vehicle had been in a collision immediately prior to Appellant's arrival. While Appellant conceded he knew the vehicle had struck something, the only first-hand knowledge available to him was the vehicle had struck a deer, which was not a credible account of what had happened based upon the evidence. The hearing officer noted a statement by Appellant that the vehicle had struck a deer despite his knowledge of evidence to the contrary, would have constituted an equally false statement on his part.

The hearing officer recommended Appellant's eligibility for certification continue to be approved pursuant to section 23-23-150(G)(1) and that the allegations of misconduct be expunged from his record pursuant to section 23-23-150(M). S.C. Code Ann. § 23-23-150 (Supp. 2021).

On June 21, 2021, the Council voted to reject the hearing officer's recommendations. On August 13, 2021, the Council issued a final agency decision. In its decision, the Council regurgitated verbatim, the hearing officer's account of the evidence, and without analysis, concluded the misconduct allegations against Appellant were supported by substantial evidence. The Council permanently denied Appellant's eligibility for certification as a law enforcement officer in the State of South Carolina. On September 9, 2021, Appellant filed a timely Notice of Appeal.

ISSUE ON APPEAL

Whether the Council's final decision is supported by substantial evidence or affected by other error of law.

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STANDARD OF REVIEW

The South Carolina Criminal Justice Academy is governed by the Law Enforcement Training Council. S.C. Code Ann. § 23-23-20 (Supp. 2021). The Council has the power to "certify and train qualified candidates and applicants for law enforcement officers and provide for suspension, revocation, or restriction of the certification, in accordance with regulations promulgated by the council." S.C. Code Ann. § 23-23-80(6) (Supp. 2021). The Court has jurisdiction to hear appeals of the Council's decisions pursuant to section l-23-600(D). S.C. Code Ann. § 1-23-600 (Supp. 2021).

Pursuant to the Administrative Procedures Act, this Court sits in its appellate capacity in this matter rather than an independent fact finder. S.C. Code Ann. § 1-23-600(E) (Supp. 2021). The Court's review is limited to the record. S.C. Code Ann. § 1-23-380(4) (Supp. 2021). According to section l-23-600(E), when acting in an appellate capacity, the Court must apply the criteria of section 1-23-380(5):

(5) The court may not substitute its judgment for the judgment of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:

(a) in violation of constitutional or statutory provisions;

(b) in excess of the statutory authority of the agency;

(c) made upon unlawful procedure;

(d) affected by other error of law;

(e) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or

(f) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

S.C. Code Ann. § 1-23-380 and -600 (Supp. 2021).

This section requires the Court to apply the "substantial evidence" rule. See e.g., Waters v. S.C. Land Res. Conservation Comm 'n, 321 S.C. 219, 467 S.E.2d 913 (1996); Palmetto Alliance, Inc. v. S.C. Pub. Serv. Comm'n, 282 S.C. 430, 319 S.E.2d 695 (1984). Substantial evidence is '"not a mere scintilla of evidence nor the evidence viewed blindly from one side of the case, but is evidence which, considering the record as a whole, would allow reasonable minds to reach the conclusion that the administrative agency reached ...'" Larkv. Bi-Lo, Inc., Z16 S.C. 130, 135, 276 S.E.2d 304, 306 (1981) (citation omitted). A decision is supported by "substantial evidence" when

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the record as a whole allows reasonable minds to reach the same conclusion reached by the agency. Bilton v. Best W. Royal Motor Lodge, 282 S.C. 634, 321 S.E.2d 63 (Ct. App. 1984). The possibility of drawing two inconsistent conclusions from the evidence does not mean that the agency's conclusion was unsupported by substantial evidence. Id. See also, Waters, 321 S.C. at 227, 467 S.E.2d at 917 (citing Palmetto Alliance, Inc. v. South Carolina Pub. Serv. Comm 'n, 282 S.C. 430, 432, 319 S.E.2d 695, 696 (1984).

DISCUSSION

Inadequacy of Final Agency Decision

"The findings of an administrative body must be sufficiently detailed to enable the reviewing court to determine whether the findings are supported by the evidence and whether the law has been properly applied to those findings." Able Communications, Inc., v. S.C. Public Serv. Comm'n, 290 S.C. 409, 411, 351 S.E.2d 151, 152 (1986). "[A] recital of conflicting testimony followed by a general conclusion is patently insufficient to enable a reviewing court to address the issues." Id. Here, the Council's final agency decision is wholly inadequate in substance. It recounts verbatim, the hearing officer's account of the testimony presented, but contains no analysis supporting its grossly conclusory findings of fact and conclusions of law. The Court is left without any ability to determine whether substantial evidence supports the Council's decision. While the Council is free to take a different view of the evidence, it cannot do so in a manner that is arbitrary or inconsistent with the law.

The Argument as to the Constitutionality of S.C. Code Regs. 37-025 (Supp. 2021) is not Preserved

While this matter is being remanded, the Court takes the opportunity to address Appellant's argument as to the constitutionality of S.C. Code Ann. Regs. 37-025. To withstand an appeal, an agency decision must be supported by substantial evidence in the record. S.C. Code Ann. § 1-23-380(5)(e) (Supp. 2021). Appellant maintains the Council exceeded its authority in enacting regulation 37-025(A) which provides "The Council may deny certification based on evidence satisfactory to the Council that the candidate has engaged in misconduct." S.C. Code Regs. 37025 (Supp. 2021). The regulation continues by outlining things that constitute misconduct. Appellant argues regulation 37-025 conflicts with section l-23-380(5)(e) by establishing a lower standard of proof; he argues "evidence satisfactory to the Council" and "substantial evidence" are separate and conflicting standards. Appellant thereafter notes regulation 37-108 does, however,

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require there be "substantial evidence" in order for the Council to impose sanction. S.C. Code Regs. 37-108 (Supp. 2021). Appellant concludes there is an ambiguity which is unconstitutional and violates due process.

Appellant raises this matter for the first time on appeal. Thus, it is not properly preserved for review. "At a minimum, issue preservation requires that an issue be raised to and ruled upon by the trial judge." Herron v. Century BMW, 395 S.C. 461, 465, 719 S.E.2d 640, 642 (2011). Moreover, this Court has no jurisdiction to rule upon a facial challenge to the constitutionality of a regulation or statute (although it may rule upon an as-applied challenge). Howard v. S. C. Dep't of Corrections, 399 S.C. 618, 630, 733 S.E.2d 211, 218 (2012) (citing Travelscape, LLC v. S.C. Dep't of Rev., 391 S.C. 89, 108-109, 705 S.E.2d 28, 38-39 (2011).

ORDER

Based on the foregoing, IT IS HEREBY ORDERED that the Final Decision of Respondent South Carolina Criminal Justice Academy, is REVERSED AND REMANDED.

AND IT IS SO ORDERED.